Unpublished Disposition, 914 F.2d 261 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 261 (9th Cir. 1989)

Dennis R. ANDREASON, Christine B. Andreason, Plaintiffs-Appellants,v.THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 89-35748.

United States Court of Appeals, Ninth Circuit.

Submitted July 12, 1990.* Decided Sept. 5, 1990.

Before HUG, NELSON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Appellants Dennis R. and Christine B. Andreason appeal the district court's entry of summary judgment against them in their action against The Guardian Life Insurance Company of America for breach of contract and promissory estoppel/misrepresentation. Appellants contend that Dennis Andreason was wrongly discharged by The Guardian without cause. They claim that the district court erred in dismissing the comments of a Guardian manager who allegedly indicated to Andreason that, notwithstanding contrary language on the latter's employment application, he would be discharged only for cause. Because we agree with the district court that the manager's comments did not alter Andreason's status as a terminable-at-will employee, we affirm.

* Appellant Dennis R. Andreason was hired in September 1979 as Director of Underwriting for North Coast Life Insurance Company ("North Coast"). He was still working in that capacity in December 1985 when The Guardian Life Insurance Company ("The Guardian") offered him a position as Western Regional Office Underwriting Manager. When interviewing for this job earlier that same December, appellant filled out and signed an employment application with The Guardian which stated that his employment may be terminated at any time by the company.

On January 10, 1986, Andreason accepted The Guardian's offer and submitted, that same day, his resignation to North Coast "to be effective [immediately], with the required thirty (30) day notice to begin immediately, and to conclude on February 8, 1986."1  Between this time and Andreason's departure from North Coast at the end of the month, he had several phone conversations with Raymond Sacchi, an assistant vice-president of The Guardian.2  In the course of these conversations, Sacchi allegedly told appellant that, with respect to employment at The Guardian, "once you're in, you're in" and that if an employee was not working out, efforts would be made to place him elsewhere within the company.

Andreason began working at The Guardian on February 3, 1986. On February 6, he filled out another employment application, identical to the one he had previously completed, since the company was unable to locate the first. Eleven months later, on March 6, 1987, his employment with The Guardian was terminated.

On October 7, 1988, Andreason and his wife3  filed a complaint for monetary damages against The Guardian in federal district court. The complaint was twice amended and, in its most recent form, pleads breach of employment contract and promissory estoppel/misrepresentation. The Guardian moved for summary judgment on both counts and the Andreasons cross-appealed for the same. On September 19, 1989, the court granted The Guardian's motion and denied the Andreasons'. This appeal followed.

II

We review de novo the district court's grant of a motion for summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

III

Under Washington law, an employment contract indefinite as to duration is terminable at will by either the employee or the employer. Roberts v. ARCO, 568 P.2d 764, 768 (Wash.1977) (en banc). If, however, the contract is for "permanent" or "steady" employment, an employee may be terminated for just cause only, provided "(1) there is an implied agreement to that effect, or (2) the employee gives consideration in addition to the contemplated services. Id. at 768-69.

Andreason argues that his conversations with Sacchi constitute an implied agreement to terminate him only for just cause. There are a number of problems with this argument. First, there is the issue of timing. It is undisputed that the conversations with Sacchi took place after Andreason had accepted The Guardian's offer and after the latter had signed an employment application stating the company's terminable-at-will policy. In conversations prior to January 10, 1986 with Guardian management, Andreason received no contrary information with respect to the company's employment policies. Thus, it is clear that Andreason's decision to work at The Guardian was not based on an understanding that he could only be dismissed for cause.

Sacchi's remarks, moreover, do not expressly alter the company's policy. Andreason was not told that he could not be fired at will; rather, he was told that The Guardian "doesn't like to fire people" and would "try to find additional slots" for problematic employees. This precatory language lacks the specificity necessary to modify the terms of Andreason's agreement with The Guardian at the time he accepted its offer of employment. Cf. Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1088 (Wash.1984) (en banc) (where no formal, written employment contract, terminable-at-will employee may rely on contrary language concerning company policies in personnel manual only where employer promises "specific treatment in specific situations").

Appellant relies principally on Adler v. Ryder Truck Rental, Inc., 765 P.2d 910, 912 (Wash.App.1988), where the court reversed the trial judge's entry of a directed verdict finding that a factual issue was present as to whether the employer specifically promised appellant, an employee, that he would be discharged for cause only. In so holding, the court noted that appellant had received a notice stating that discharge would be for cause only, that a company personnel spokesperson had stated as much, and that such policy was well known among Ryder employees. Id.

In the instant case, by contrast, there are no comparable facts suggesting that a specific promise was made concerning discharge for cause. Since Andreason was not yet an employee during the relevant period, the only information he had with respect to company policy was that contained in his application and that which he sought out informally. Unlike Adler, Andreason received no written notice concerning company discharge policies and was necessarily unfamiliar with general Guardian employment practices. His one source of information was Sacchi, but even Sacchi did not state that discharge was for cause only; as explained above, he merely indicated that the company generally attempted to accommodate employees who were having trouble with a particular job assignment.

Appellant's position is further attenuated by Grimes v. Allied Stores Corp., 768 P.2d 528 (Wash.App.1989), where the court held that specific termination-at-will language in an employment application preempts arguably inconsistent language in an employee personnel manual irrespective of whether the manual was issued before or after the completion of the application. While the opinion cites to that portion of Thompson holding that promises made in manuals "of specific treatment in specific situations" are enforceable if relied upon, it adds that the parties must intend to be bound by these statements for the promises to be actionable. Id. at 530. If a written personnel policy was held to be insufficient evidence of such intent in Grimes, it is inconceivable that the precatory comments of one managerial employee would suffice here.

IV

Appellant also argues, in accordance with the second exception to the termination-at-will doctrine, that he could only be terminated for cause because he gave consideration in addition to the services contemplated. Roberts, 568 P.2d at 769. He offers two examples of this additional consideration. Neither is persuasive.

First, Andreason contends that the fact that he gave up his job with North Coast constitutes additional consideration. This argument has been rejected, however, by the Washington Supreme Court which has held that "the foregoing of other job opportunities is not sufficient independent consideration to defeat an employer's right to terminate employment at will." Id. (citing Heideman v. Tall's Travel Shops, Inc., 73 P.2d 1323 (Wash.1937)). Andreason also argues that the benefit which The Guardian gained by not having to pay relocation costs constituted additional consideration. To accept this position would require us to redefine consideration to eliminate the notion of bargained-for exchange on which current formulations are based. We would also be creating, as Judge McNichols noted, "a vast loophole in any situation involving a multi-state employer who employs a local resident." As a federal court, we are without authority to change Washington law in these ways.

V

Appellant Dennis R. Andreason was hired by The Guardian as a terminable-at-will employee. We find that the comments of Guardian Vice-President Raymond Sacchi did not constitute a specific promise to Andreason that, contrary to the statement on his employment application, he would be discharged only for cause. Thus, any reliance placed on Sacchi's remarks by Andreason was unjustified. Because appellants claims for breach of contract and promissory estoppel/misrepresentation are untenable, summary judgment was properly entered in favor of appellee.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Andreason used his remaining eight vacation days against the 30-day notice period and left North Coast on January 31

 2

The district court found there to be an "ostensible dispute" as to whether these conversations occurred before or after the commencement of Andreason's relationship with The Guardian. We disagree since Andreason's acknowledgement that he spoke with Sacchi after accepting The Guardian's offer indicates that the conversations occurred after the formation of an employment relationship between the two

 3

While Christine B. Andreason remains a named appellant in this action, she asserts no independent cause of action against The Guardian; her claims are wholly derivative of those of her husband